Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-11-14
ARGUMENT
on THE MOTION FOR A NEW TRIAL.
NEw CuMBERLASp. NOrember 1a

NEW CUMBERLAND, November IL.
Special Telegram TO the Sunday Register.
Hon John A. Hutchinson this morning
made the closing argument for the prosecu-
tion in the Van Baker case. He opened,
briefly reviewing the points raised by the
defense upon which was based the claim
that injustice was done the prisoner. After
laying down propositions of law, he went
into an exhaustive citation of authorities,
the burden of his argument being that the
action Of Juror Spivey could not prejudice
the prisoner. That so far as the prisoner
Is concerned he should be hanged. This
wa the most atrocious murder of the age.
The Anarchists were at least honest in
a belief that they were benefitting
the poor as against the rich and did their
deed openly, but here was a man, the hus-
band of n and son of the other, muir
dered women, who for the sake of filthy
gain, struck down tie victims with no eye
but that of God to
E THE FOUL DEED.
There was no injustice in the conduct of
the jury. The separations were not proven,
excepting the time when the crowd in the
court house caused a momentary separa-
ton.
The drinking of whisky and brandy by
the jury showed no prejudice to the pris-
oner. While there was such drinking it
was only in small quantities, and not
while the jury were celebrating on the
verdict.
And in further evidence of injustice done
the prisoner, they bring in the affidavit of
Oliver Grimes, as newly discovered evil
dence, but the witness simply says he
SAW \ WOMAN
on the McWha premises after Baker left
the house, that afternoon of the murder,
and does not swear that it is either of the
two women. 1t amounts to nothing. 1t
would be simply cumulative, corrobora-
tive and collateral evidence; and is there
fore such as will not constitute grounds
for a new trial.
In concluding, Mr.. Hutchinson said
that the evidence was conclusive of the
prisoners guilt, and that there was no
error in the case sufficient to set aside the
verdict, and it is the duty of the court to
see that the law should be executed, how
ever painful it may be to the court to en-
force.
COL. ARNETT's ADDRESS.
The afternoon was occupied by Col. Ar
nett, of Wheeling, W. Va, introducing the
closing argument of the defense by y re-
equalization of the case. Among the errors
he assigned zone was more fatal than the
instructions offered by the State and
allowed to so to the jury. That here was
a man who was to be hanged because the
motive would be presumed to he that he
murdered his wife in order to obtain her
separate estate. If such was the law then
every man whose wife had a separate es-
tate, in event of his wife being murdered,
and circumstantial evidence relied upon to
convict, would be liable 10 be hanged for
the deed. The evidence was plainly in
sufficient to warrant the verdict and
NEEDS NO ARGUMENT,
as it is well known TO the Court.
Ifthere is q separation proved, and such
a separation was intentional on the part of
the Juror, the law presumes that the pris-
Oner was p%reiudiced thereby. If there
was whisky drunk or bought on the
day the verdict was rendered by any
of the jury, it must he equally true
and the evidence Of the jury or the bailiff
is not sufficient TO rcbut the presumption,
and the verdict should not stand. The
eyilan,. nf NanInin StnurarN thnt hn uyao
in the court room with part of the jury,
on the evening the Jury were sent out,
was sufficient to set the verdict aside. The
fact of two strangers talking with Spivey
out in front of the court house should do it.
The gas pipe line man who talked with
Spiyey Tor fifteen or twenty minutes out
Of the presence Of the deputy, .as proved
by two witnesses, would do it. The state
ment of Spivey previous to going on the
jury, as sworn to by nine witnesses, and
promising the defendant TO clear him if
placed on the jury, is conclusive proof
that some, at least, of the jurors had been
biased, and Spivey in particular, by his
solemn pledge deluded and deceived the
prisoner to get a place on the jury to try
him for his life.
BARR'S AFFIDAVIT.
The affidavit of David l.. Barr, a resi-
dent of East Liverpool, o., was also sub
United.
lie swears that Frank p. Spivey,
was one OF the Jurors in the above case.
That some time in July last, or Just before
the time that the Circuit Court net in
Hancock county, West Virginia, that tried
Van B. Baker for the murder OF his wife
aud motber-in-law. That Frank p. Spivey
beingin my place of business on the time
above mentioned, in course Ofconvcrsation
with one Duffy in regard to the guilt or
innocence Of Baker, said that Baker
was guilty, and that he would bet
$50; yes, he would bet $50 that Baker
would hang, and he was going down to
New Cumberland to help hang the E
OF q b.
ID. T. Burchard and - ~Plattenburg
each swear that they were present at the
time of said conversation, and both say
that the affidavit of Barr is correct.
Other witnesses swear to substantially
the same facts OF Spivey making similar
declarations at different times.
Spivey swOre on his IOir-Dirc that he
did not think that he had expressed an
opinion in regard TO the case.
At the conclusion of Col. Arnett's argu-
ment court adjourned. Judge Boyd's de-
cision may not be rendered for some time.
Baker was returned to the Wheeling Jail
this evening.
nUIn plNEp UpT